Divorcing the courts

The battle between secular versus religious law has almost become a Solomonic choice.

scales of justice 88 (photo credit: )
scales of justice 88
(photo credit: )
What started off as a controversial ruling last April by Supreme Court Justice Ayala Procaccia in the case of Sima Amir versus the rabbinical courts has turned into a political hot potato with the potential to bring down the government of Prime Minister Ehud Olmert. In its simplest terms, the ruling exacerbated the tensions between the secular and religious courts over the status and prerogatives of the latter. On a more complex note, it exacerbated the tensions between the rabbinical courts and women's organizations, including Orthodox groups, which argue that women suffer inherent discrimination in these courts and are treated more fairly in the secular court system. Procaccia and her two colleagues, Mishael Cheshin and Salim Joubran, ruled on April 6 that even when both parties to a divorce have agreed, as part of the divorce agreement approved by the rabbinical court, to refer any future disputes over implementation of the agreement back to the same court, the court was prohibited from handling the dispute. Procaccia, who wrote the decision, went a step further by asserting that rabbinical courts were prohibited from arbitrating any kind of civil dispute, even when both parties wanted them to, and even though this had been the uncontested practice since the state was created. The haredi parties, Shas and United Torah Judaism, were among many in Orthodox circles that were stung by the ruling. As they saw it, the secular court system had, not for the first time, rammed its superior status down the throats of the Orthodox community by once again circumscribing the powers of the religious courts. Luckily for them, the ruling was handed down one week after the national elections, while Kadima and Shas were beginning to negotiate the terms of Shas's entry into the coalition. The ruling became a key issue in the talks. According to the official coalition agreement published on April 30, the two parties agreed to the following: "The government will submit a bill giving the rabbinical courts judicial authority regarding matters which can be made into an agreement between [disputing] parties when both parties agree to this. [In these cases,] the rabbinical courts will also have judicial authority in disputes emanating from the rulings or agreements [originally] initiated or approved by the rabbinical court... The bill will be presented [to the Knesset for approval] after the Ministry of Justice forms its professional opinion on the matter." It is not clear to what extent the Kadima negotiators understood the sensitive and legally complicated issue they were dealing with, or whether the Shas representatives went out of their way to explain it to them. One way or the other, the outcome of the negotiations went far beyond revoking Procaccia's ruling. The agreement, if implemented, effectively stands to overturn three precedent-setting High Court rulings going as far back as 1994. THE POWERS of the rabbinical courts are defined in the 1953 Rabbinical Courts Adjudication Law. According to the law, matters of marriage and divorce of Jewish citizens of Israel are under the exclusive jurisdiction of the rabbinical courts, which will deal with them solely according to religious law (Halacha). The rabbinical courts are also allowed to deal with monetary matters, such as the division of property and alimony payments, on condition they are intricately bound up with the agreement to divorce. For many years, the court applied halachic law to these material matters, too. In 1992, however, Hava Bavli petitioned the High Court of Justice after the higher and district rabbinical courts rejected her demand to split the couple's assets equally in accordance with judicial law regarding the equal division of joint property amassed by a couple during their marriage. The rabbinical court declared that it was not obliged to rule according to secular court decisions and that its rulings were governed by religious law. The High Court accepted Bavli's petition. "The judicial laws of equally shared property are the law in Israel," wrote Justice Aharon Barak. "They are part of the law of the land. Therefore, they apply to every court in Israel. [That means] they also apply to the rabbinical courts. And notice: The law applies to the rabbinical courts not because Knesset legislation explicitly says it does. The law applies in every court - including the rabbinical courts - because judicial law handed down in rulings by the Supreme Court is the law in Israel." In addition to the fact that the rabbinical courts were now obliged to rule in accordance with a principle set down in secular rather than religious law, the ruling was also an unequivocal assertion of the fact (established in the Basic Law: The Judiciary) that the Supreme Court was above the Higher Rabbinical Court in the judicial hierarchy. Seven months after the Bavli decision, Justice Mishael Cheshin published another landmark ruling regarding relations between the secular and religious courts. This case involved Sima Levy, whose divorce agreement with her husband included a provision that should she at a later date apply to any court to increase her alimony, she would forfeit her right to live in their jointly-owned apartment until the children were grown and would have to pay her husband the additional alimony money awarded to her. When Levy's children applied to the family court for higher alimony, the husband filed suit in the rabbinical court to implement the indemnification clause. The district rabbinical court accepted his suit and the higher rabbinical court rejected Levy's appeal against the lower court decision. Levy then petitioned the High Court of Justice. Cheshin ruled that the Rabbinical Adjudication Court Law did not empower the rabbinical courts to hear a lawsuit calling for the implementation of an indemnification clause. He maintained that the rabbinical court had finished its job as soon as it granted the divorce. After the divorce was finalized, any future dispute regarding the divorce agreement must be treated within the context of contract law, and only civil courts were allowed to hear them. "The rabbinical court did not have authority according to the law to consider the [ex-husband's] rights regarding violation of the indemnification clause in the divorce agreement," wrote Cheshin. "This prerogative is invested solely in the secular (civil) courts." IT WAS another 12 years before the third landmark decision was handed down by Procaccia in the case of Sima Amir. According to Amir's divorce agreement with her husband, he was to pay his share of the mortgage and a certain amount of alimony. The agreement also included an indemnification clause stating that should Amir demand higher alimony or ask for a travel restriction against her husband, she would forfeit his half of the house and the family gold, which he had agreed to relinquish. Unlike the Levy case, both sides agreed in advance to appoint the rabbinical court to deal with any disputes arising from the divorce agreement. Five years later, Amir filed suit in family court to increase the alimony after her former husband failed to keep up his mortgage payments. In turn, he applied to the rabbinical court to implement the indemnification clause. At first, the court ruled that since the couple had agreed to let the court handle their future disputes, and since, according to the Levy ruling, it could not hand down a judicial ruling in a monetary dispute, it would act as an arbitrator. Later, the court changed its mind and asserted that it had the right to hand down a judicial ruling on the husband's suit since both sides had agreed to let it do so. Procaccia rejected the rabbinical court's position. The fact that both parties had agreed to let the court adjudicate their dispute had no bearing on the situation, she wrote, since the law did not grant it that power in the first place. She added that the law did not even grant the rabbinical courts the power to arbitrate any disputes regarding divorce or any other monetary matter. Therefore, they must stop this practice. Until Procaccia's ruling, in addition to functioning as a court of law in matters of marriage and divorce, the rabbinical courts also arbitrated monetary disputes on matters having nothing to do with divorce, the understanding being that arbitration was not coercive and that both sides come to the court of their own free will. In these arbitration cases, the rabbinical courts were free to apply Halacha to the dispute. But Procaccia ruled that this practice must stop. The law, explained Procaccia, did not grant the court the power to do so. THE PROCACCIA ruling was the last straw for many members of the Orthodox community who felt that the Supreme Court had violated the status quo and was deliberately diminishing the status of the rabbinical courts. "There are too many occasions in which the court takes a bite out of the rabbinical court's prerogatives," Shimon Ya'acobi, legal adviser for rabbinical adjudication in the Chief Rabbinate, told The Jerusalem Post. "The case of Sima Amir is an example of the Supreme Court's policy, which is characterized by a formal and somewhat inflexible approach and a tendency to reduce the powers of the rabbinical court." As added insurance regarding Kadima's promise to Shas to pass legislation to restore the rabbinical court's powers, UTJ MK Moshe Gafni and Shas MK David Azoulai submitted identical private member's bills aimed at achieving this same end. Should the government not live up to its word, they would force it to. According to their proposals, the rabbinical courts would be empowered to hand down judicial rulings (a measure stronger than arbitration) according to Halacha on any civil matter lending itself to an agreement if both parties to the dispute agreed to this in writing. In other words, they could rule according to Halacha on any kind of monetary dispute, divorce-related or not. The rabbinical court would also have the exclusive right to adjudicate any future dispute arising out of a ruling which it had originally handed down. When Gafni brought his bill to the plenum for preliminary reading, then justice minister Haim Ramon asked him to postpone the vote to give the government time to prepare the legislation it had promised Shas. But the bill drafted by the Justice Ministry was not what the haredi parties had in mind or, indeed, what Kadima had promised in the coalition agreement. The government bill granted the rabbinical courts the right to rule on disputes, including demands to implement an indemnification clause, originating in the original divorce agreement, as long as both sides agreed. It also explicitly granted it the right to arbitrate monetary disputes unrelated to divorce proceedings. However, the government bill did not allow the rabbinical court to apply Halacha in its judicial rulings, rather the "law of the land" as adjudicated by the Supreme Court. Shas opposed the bill when Ramon presented it to the cabinet. The cabinet decided to give the minister of justice more time to negotiate with the haredim. In response, the representative body of rabbinical court judges, the Committee of Dayanim, submitted a bill aimed at bridging the gap between the Justice Ministry and Shas. It adopted the government proposal granting rabbinical courts the right to rule on future disputes emanating from the original divorce agreement. However, it added a provision allowing rabbinical courts to rule on (rather than arbitrate) any civil dispute lending itself to agreement or matters of a religious nature, and to do so according to Halacha. Ramon met with Sephardi Chief Rabbi Shlomo Amar, Industry, Trade and Labor Minister Eli Yishai and Minister without Portfolio Meshulam Nahari to discuss the proposal. They did not reach a decision and were due to meet again. In the meantime, however, Ramon was forced to resign. The talks have been in deep freeze ever since. Last week, the Justice Ministry announced that the Ministerial Committee on Legislation would discuss the Gafni and Azoulai bills on December 25. However, the topic did not come up at the meeting. THE PUBLIC debate over the prerogatives of the rabbinical court is not being conducted by the religious and secular courts. The fight is mainly between the haredi parties - though many maintain that the rabbinical courts administration is pulling the haredi MKs' strings - and a number of women's organizations and their supporters, most of whom want to reduce the power of the rabbinical courts because they allegedly discriminate against women. In the Bavli ruling, Barak explained the difference between the way civil law and Halacha view the property accumulated by a couple during their marriage. According to civil law, all property belongs equally to both, no matter in whose name it is registered. This is based on the presumption that during the couple's years together, they have made an equal contribution in the overall context of work, home and child-raising that constitute family life. Halacha does not recognize the presumption that a shared life includes an implied agreement to share property equally. "The result," wrote Barak in Bavli, "is that the body of women's civil rights, which are recognized in general law and civil courts, are not recognized in the rabbinical courts." Restoring the right of the rabbinical courts to apply Halacha to the monetary provisions of divorce agreements would be a severe setback, according to Ruth Halperin-Kaddari, chairwoman of the Rackman Center for the Advancement of the Status of Women and a member of Bar-Ilan University's Faculty of Law. "The amendment [proposed by the Committee of Dayanim] removes all of the mechanisms that protect the rights of the parties to a divorce, especially the rights of the women, which the secular law system, through Knesset and judicial legislation - has worked hard to consolidate over a period of decades," she said. For example, Halperin-Kaddari continued, according to the Justice Ministry and Committee of Dayanim proposals, the rabbinical courts would continue to handle all future disputes emanating from a divorce agreement. The fact that this provision was dependent on the consent of both sides was essentially meaningless. "The 'consent' of a woman in the midst of divorce procedures to discuss property issues in a rabbinical court according to Halacha, which does not recognize the judicial law of joint property or apply the Financial Relations Law, can never be anything but forced consent imposed on the woman by the husband as a condition for granting her a divorce," she said. YA'ACOBI STRONGLY rejected the allegations raised by the women's organizations that rabbinical courts side with the husband and actively contribute to victimizing the woman. For example, he said, for a divorce to occur according to Halacha, the man must give the divorce and the woman must receive it. If either refuses to do his or her part, the court will not force them to. As a result, there are 1,000 divorce cases that have yet to be settled over the past nine years - 450 involving men who have refused to grant a divorce, and 550 women who have refused to accept one. "It is a myth to say that women are the ones who cannot get divorced," Ya'acobi said. He also said it was only proper to negotiate the financial terms of the divorce rather than split the property down the middle in a mechanical way. "Even when there is a [halachic] cause for divorce, the court must create mutual agreement," he maintained. "We do this by getting the sides to compromise. Married life is not arithmetic. Equality is expressed on a different level. Each person must contribute his share. There is no statistical proof that women come out the losers in divorces. Women and men both lose out when a marriage dissolves. "The women's organizations," he continued bitterly, "are waging war on the rabbinical courts for the sake of waging war. They think anything that hurts the rabbinical courts is legitimate." Attorney Batsheva Sherman rejected Ya'acobi's accusation. Sherman is director of Yad LaIsha, an organization belonging to Ohr Torah-Stone Institutions, which provides legal help to agunot (women in limbo whose husbands have refused to divorce them for many years) and other women who cannot obtain a divorce. Yad LaIsha is made up entirely of Orthodox women, including two from the haredi community. "It is absolutely baseless to say we want to harm the rabbinical courts," she said. "What we do is for the good of the rabbinical courts. We want them to reform from within." Sherman did not refute Ya'acobi's statistics, but said the fact that there are so many men who have been refused divorces by their wives does not mitigate the women's problem. In fact, she added, the plight of women who cannot obtain a divorce is still graver than that of men in the same circumstances. One reason for this is linked to Halacha, she explained. The requirement of a man's consent for divorce dates back to the Bible. The requirement regarding women is a much later development. Therefore, the rabbinical courts treat it less seriously. Furthermore, women are more vulnerable from a halachic point of view. A man who is not divorced may strike up an intimate relationship with another woman and have children with her without negative consequences. A woman who is not divorced may not. If she does, and has children, the children will be regarded as bastards. Women are also vulnerable because they are only fertile for a limited number of years. Men can establish new families at a much later age. Men have more leverage than women in other ways as well, Sherman contended. In many cases, the family property is registered in the name of the husband. In these cases, the husband continues to own the property until the moment the divorce is granted. Until that time, he wields this material power and can use it as leverage to extort material concessions from his wife in return for the divorce. Sherman also maintained that the rabbinical courts often view the decisions of the secular courts as tantamount to theft of the husband's property, since the dayanim do not accept the theory of equally shared property. As a result, the rabbinical courts try to protect the husbands, whom they regard as victims, and act as their lawyers in the negotiations between the couple over the divorce terms. At this moment, the future of the proposed legislation and the coalition agreement is in the hands of the government and the Knesset. Gafni told the Post that if the government continues to stall or fails to come up with satisfactory legislation, he can submit his bill at any time. The same holds true for Shas MK Azoulai, whose faction contributes 12 MKs to the coalition. If Shas decides that the question of rabbinical court prerogatives is important enough, it could choose to leave the government. And this would be a step Prime Minister Ehud Olmert can ill afford. n